Residential development appeals

These pages describe appeals that can be made to the Court against a consent authority’s determination concerning certain kinds of residential development and other developments that are referred to in s 34AA of the Land and Environment Court Act 1979

Development types covered here are:

  • development of detached single dwellings (houses) and dual occupancies (including subdivisions),
  • alterations or additions to detached single dwellings (houses) or dual occupancies or other developments described by the regulations.

The Court refers to these types of development as residential development. Appeals concerning residential development are dealt with by a particular process. This involves two steps: first, a conciliation between the parties and second, if the parties cannot resolve the matter by conciliation, a hearing and a decision by the Court.

The Court can also order proceedings in other classes to be dealt with in this way (see s 34AA(1)(b)).

Practice and procedure

The Court has published a formal document that sets out the process and requirements for residential development appeals. This is called the Practice Note - Class 1 Residential Development Appeals (PDF , 341.9 KB).

The Practice Note explains the steps that need to be taken before the directions hearing, at the directions hearing, before the conciliation conference and hearing, and at the conciliation conference and hearing.

The Court has also prepared an informal document called Questions and Answers – Class 1 Residential Development Appeals (PDF , 90.0 KB) which addresses frequently asked questions about the process of resolving residential development appeals.

Process for residential development appeals

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The Land and Environment Court has jurisdiction to hear and finalise appeals against a consent authority’s determination about:

When the development referred to in the development application is for a residential development or other development mentioned in s 34AA of the Land and Environment Court Act 1979, the appeal is referred to by the Court as a residential development appeal.

A residential development appeal can be made to the Court when:

  • a development application, or an application to modify development consents, for residential development has been made by the applicant to a consent authority
  • that consent authority has made a determination about the application, or is taken to have refused an application (see below), and the applicant is dissatisfied with the consent authority’s determination
  • there is a right of appeal under s 8.7 or s 8.9 of the Planning Act (also see 'Who can make a residential development appeal?' below).

A residential development appeal can be made by a person who is entitled to appeal under s 8.7 or s 8.9 of the Planning Act. That is, the person is required to be:                

  • an applicant for a residential development application or an application to modify a development consent for development (check the applicant name on the original application to the consent authority; if the applicant name is different to the name of the person filing the appeal, the person may need to establish that the applicant was authorised to act on their behalf), and

  • dissatisfied with the determination of a consent authority with respect to the applicant’s residential development application or modification application (including a determination on a review under s 8.2 or s 8.9 of the Planning Act).

     

A residential development appeal to the Court under s 8.7 or s 8.9 is generally to be made within 6 months after:

  • the date on which the applicant received notice of the determination of the application or review,

  • or the date on which that application is taken to have been determined (see s 8.7 and s 8.9 of the Planning Act).

A development application is taken to have been determined (that is, it is deemed to have been refused) if:

  • the development application was lodged with the consent authority

  • a certain period of time has elapsed, and

  • there has been no determination.

For appeals concerning development applications under s 8.7 of the Planning Act, an application is deemed to have been refused (in s 8.11 of the Planning Act and cl 113 of the Environmental Planning and Assessment Regulation 2000) after:

  • 40 days for ordinary development

  • 60 days for designated development or integrated development

  • 90 days for State significant development.

For appeals concerning modification of development consents under s 8.9 of the Planning Act, the deemed refusal period is generally 40 days after the application was made (according to s 4.55 and s 4.56 of the Planning Act and cl 122 of the Planning Regulations).

Steps

Helpful materials:

For links to useful Court information and documents, legislation and case studies relating to residential development appeals, see: Helpful materials.

Residential development appeals
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Last updated:

17 Dec 2020

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